Looming over the election that occurs in 113 days is a refrain that is sure to be heard repeatedly from the White House, before and after the balloting: “The election was rigged!” That may not be true of how the contest actually went, but it is bound to add to the uncertainty that already is enveloping the November 3 balloting.
The main uncertainty is this: America may not know that day who won the presidency; it’s possible that the result may not be known for weeks. That is putting it in simple, stark terms; why that could occur is more complex.
The reality is that, for the result to be settled that night, there would have had to be a sweeping, landslide victory, leaving no doubt, for either President Trump or likely Democratic nominee Joe Biden. At this point, that is hardly predictable.
What’s the problem that seems to be developing?
There are four things now occurring that, together, may so complicate the process that, on election night, television announcers could be saying repeatedly, “Too early to call.”
First, many millions of Americans, fearful of going to the polls during the virus pandemic, are planning (or at least hoping) to vote by mail this time, and mailed ballots are harder to count (mostly because of verification problems) than in-person voting. President Trump, backed up by Attorney General William Barr, is claiming that fraud is rampant in mailed balloting, and that claim, however exaggerated, will make verification even more crucial. Also, the President is resisting more funding for the Post Office, money that would enable it to better handle the expected flood of mail-in votes.
Second, the Republican leaders of the U.S. Senate are not preparing – as of now — to allow that chamber to vote for more money to bail out state and local election managers. They are facing not only the problems of verifying and counting mail-in voting, but also the millions of voters that may choose to vote in person in a presidential contest of historic significance, and interest.
Third, the Republican Party’s election operatives, working with a $20 million budget, are planning to do a great deal of “poll-watching” to challenge the legitimacy of voters showing up at the polls. The GOP has long been convinced that many do vote who are not eligible, meaning fraudulent ballots, even though election fraud is usually considered to be nearly non-existent in this country. Fourth, courts all across the nation are working their way through dozens of lawsuits that seek to make it easier for Americans to vote during a virus pandemic (including facilitating easier voting by mail). This process is a race against time, because there are a couple of deadlines, and there is no guarantee that those will be delayed this year.
At this point, money and time are the two potential obstacles to running the election successfully and determining the results fairly promptly. Because elections in this country are highly decentralized, state and local governments operate in differing ways with differing priorities, and apparently with limited budgets. The expected rise in mail-in voting, in particular, seems to be causing some election managers to scramble to cope.
While Democrats in Congress are eager to pass bills providing more money to aid state and local governments, there is as yet no sign that they will be joined in that effort by Republican lawmakers.
The extent to which President Trump and his aides succeed in reducing the number of people who would vote by mail is hard to predict, in part because many Republican election operatives are said to believe in that mode of balloting and may not join in the President’s campaign against it. It is also uncertain how many voters might be challenged at the polls by Republican poll-watchers.
What is most in doubt at this point is how the courts will act on the legal challenges to barriers or restrictions on voting, especially those that apply to mailed voting. The early results have been somewhat positive, tending to expand voting opportunities, but there is no assurance that the trend will continue that way. Some 50 or more lawsuits are pending right now, and expecting unanimity in outcomes would be unrealistic.
The courts are well aware that they must move with dispatch, because there is a legal restraint that is well known to lawyers and judges, but unknown to almost everyone else, and it is not going to change. Any attempt to use the courts to alter or add an election law or procedure must be completed as soon as possible and, in any event, considerably in advance of election day itself.
This requirement goes by the name “the Purcell principle.” It gets its name from a brief Supreme Court ruling in October 2006, in the case of Purcell v. Gonzalez. Election day in Arizona was then imminent and a lower court had temporarily blocked two new requirements: one required those seeking to register to vote to show proof that they were U.S. citizens, and the other required each voter to have a personal ID card in order to cast a ballot.
The Supreme Court overturned the lower court, and allowed the state to enforce both requirements. The Justices declared unanimously that making changes in election laws close to the day when voters go to the polls can result in confusion about what the rules are and how they affect the vote. It cautioned lower courts to hesitate before they order what would be last-minute changes.
Although the ruling at the time did not seem to impose a hard-and-fast rule against mandating changes near elections, the decision since then has been applied more rigorously by many courts, and especially by the Supreme Court.
In April of this year, for a recent example, the Court acted on the day before a presidential primary election in Wisconsin to block a lower court’s order that would have given voters in the state an extra six days to send in mail-in ballots. The Justices’ action led many to risk their health during the virus crisis by going to the polls in person because they were unable to get mail-in ballots in time.
In reaching that result, the Supreme Court commented: “This Court has repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election.” It cited the Purcell decision as authority for that statement. (Incidentally, the plea to block the extra days for mail-in voting had been pursued by the Republican National Committee, along with the Wisconsin state GOP; the Democratic National Committee and state party members were on the other side.)
Because of “the Purcell principle,” election-law specialists who filed the new round of lawsuits this year moved to do so early, but the timing is still in the control of the courts and, of course, the courts are bound by the Purcell mandate.
These lawsuits face another deadline, and this is imposed directly by a federal law that controls how every presidential election is to be carried out. (Congress could change that deadline, but as of now there appears to be no effort to do so.)
Under this year’s calendar set by that law, after the people vote on November 3, officials in each state will have only 35 days to settle any controversies about who won in that state. That is, they will have until Tuesday, December 8, to officially certify the results. If they meet that deadline, they can benefit from a “safe harbor” provision: meeting that deadline assures them that that Congress will treat their results as valid.
In resolving any controversies that go into state courts – and that is where the organizations of either President Trump or Joe Biden could go to challenge the results that they mistrust – the challenge will be governed by state laws that had to be in effect before election day. Such court action, if done by December 8, will be treated as final.
If states do not certify their results by December 8, they can continue to work on that process for another six days – until December 14 — but then the results they certify will be open to challenge before Congress.
December 14 is the cutoff day, set by federal law, because that’s when the Electoral College actually picks the president. Americans who are savvy about presidential elections know that the people who go to the polls vote for electors, not directly for the president, and it is the electors who pick the winner. (Last week, the Supreme Court ruled that states have the power to demand that their electors vote, in the end, for the candidate who won the most popular votes in their state.)
The 538 electors meet in their own states to decide; nationwide, a total of 270 electoral votes is needed to decide the winner.
Some advocates, worried about complications this year that could beset the states’ counting processes, have been urging Congress to change the “safe harbor” date and the date for the Electoral College members to meet. One proposal is to give the states until December 31 to finish, and still qualify for the “safe harbor” promise of validated results, and to change the date of the Electoral College balloting to January 2.
Inauguration day will be on January 20, but the nation might be convulsed with anxiety if the results of the November 3 election are not finally determined by the current December 8 “safe harbor” date or the December 14 Electoral College date. How much more anxious would the nation be if those dates were changed by Congress to December 31 and January 2?
(History records that, in the close race in 1876 (the famous Tilden-Hayes debacle) a president was not finally chosen until the day before inauguration.)
A change this year of the specified dates might not favor either the Democrats or the Republicans, because each candidate’s organization might wish to have more time to determine whether and how to mount challenges. But the mere fact that there would be more time to pursue a contest could be a temptation to do so anyway, in hopes of gaining an advantage in the counting.
If preliminary reports or polling data tends to show that the election had been close, that would tempt campaigns even more to protest. In any event, President Trump’s repeated claims on Twitter that this year’s election will be “rigged” probably guarantees that he and his campaign and legal aides will pursue whatever challenges may occur to them.
Election experts note that the close contest in 2000 between George W. Bush and Al Gore went right up to the “safe harbor” deadline. That year, the states had to certify their results by December 12 and the Supreme Court issued its ruling late that night. Florida officials promptly certified their votes for Bush, sealing victory for him. The Supreme Court had made that action possible by blocking any further recounts in Florida. Everyone knew that, however Florida went, so would the presidency go.
The Electoral College voted for Bush on December 18, giving him 271 votes (one more than needed) to Gore’s 266. Actual votes cast by the people showed that Gore’s popular vote was 500,000-plus higher than Bush’s, out of about 101 million votes; their popular vote shares were Gore 48.4 percent and Bush 47.9 percent. (Gore conceded, being well aware that the total popular vote does not control; the Electoral College vote does.)
Is this year’s election going to wind up that close? It could, and chaos could follow. That prospect will be a reminder to the nation’s voters that, as the politicians say, elections have consequences.